On Tuesday, October 13, the Court will hear arguments in No. 08-651, Padilla v. Commonwealth of Kentucky. At issue in the case is whether a criminal defendant�s guilty plea can be set aside because his defense counsel affirmatively misadvised him with regard to the deportation consequences of the plea, and whether such misadvice constitutes ineffective assistance of counsel under the Sixth Amendment.

Details.

[Note: Texas may avoid this issue by having a statutory warning in felony cases that consistently advised an alien defendant that deportation is always a possibility. Nonetheless, do you think misinformation should = reversal?]

I smell roll-over affidavit as a fall-out from this...anyone successfully seek a state bar sanction of a lawyer who files an affidavit claiming they were ineffective in some regard to support a motion for new trial or other relief?

Here in this border area we have received a number of post-conviction writs under either Code of Criminal Procedure Art. 11.07 or Art. 11.072 which claim that the judge, defense counsel, or both did not sufficiently warn the defendant about the potential immigration consequences of a plea.

One major factor in this type of case concerns the degree of specificity of any admonishment by either the judge or the attorney. Obviously, it must be specific enough to warn the defendan, but not so specific that it risks making a prediction about possible consequences which ends up later being inaccurate.

For example, often ignored is the careful wording of the statutory judicial admonishment required by Code of Criminal Procedure Article 26.13 (a)(4). First, this provision states that the judge is to tell the defendant that there may be certain consequences if he or she is not a citizen of the United States of America, without specifically asking them if they are a citizen, which could prejudice the judge's evaluation of the case (although judges often do ask about citizenship). Secondly, the judge is to admonish the defendant that not being a citizen "may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law", without attempting to predict any specific consequences of the conviction.

Any advice predicting potential immigration consequences which defense counsel might give risks the same danger of ultimately being shown to be inaccurate.

For example, before April 1, 1997 a deferred adjudication was not considered a final conviction for purposes of federal immigration law; enactment of the Illegal Immigration Reform and Immigrant Responsibility Act, effective on that date, changed the prior law in this area; and the U.S. Fifth Circuit has held said change to be retroactive. Thus, an lawyer who, prior to 1997, recommended that his or her client plea to a deferred adjudication believing that a deferred adjuciation would not subject the client to deportation or other adverse immigation consequences would have been correct at the time, but then been proven wrong by a subsequent change in the law.

The point, I am making is that there is a fine line between not warning a defendant about possible immigration consequences sufficiently and becoming too specific in attempting to do so.

Finally, in regard to Rob's question, we have run into all types of reactions from attorneys to this type of ineffective assistance claim, including some who try to "roll-over". In fact, we even have a case involving a 1991 deferred sentence which is now on appeal of granting of relief under Article 11.072 in which a former district judge testified that it was "highly improbable" that he had admonished the defendant of immigration consequeces of his plea, even though he realized that the statutory requirement to do so had gone into effect several years earlier! (Obviously part of our appellate argument challenges the failure to recognize our laches argument).

However, I have never heard of a successful effort to obtain a state bar sanction in this type of situation.